The Nature Of מיתת הבעל

Continuing the previous post....

The gemara [13b] asks - How do we know that the death of a husband releases his wife? The gemara answers that it is simple logic - He forbade her when he took her and now he he gone so she is automatically permitted to marry someone else. The Rogochover and Reb Elchonon Wasserman both independently concluded from this that death is העדר - a passive "the husband is no longer here so she is permitted" type release.

But the gemara rejects this and learns from a pasuk that just as divorce separates - so does death. If we are comparing death to divorce we are compelled to conclude that death is an active release, a פעולה, just like divorce. The Rogochover in his famous terseness expresses this proof with a gloss on his gemara that contained the following words - ועיין לקמן י"ג ע"ב סברא.

[I have tremendous amounts of compassion and pity for those who learn gemara superficially and miss out on the depth of the Achronim. Not everything they always say is correct but EVERYTHING they say makes one think more deeply and for THAT we live.....:-).

Nu - vyter.]

The Rogochover then wrote on his gemara וגיטין דף פג. So let us see what he means. The gemara there says that the Torah compares a woman's unmarried status preceding her second betrothal to her unmarried status preceding her first betrothal. מקיש קודמי הויה שניה לקודמי הויה ראשונה, מה קודמי הויה ראשונה דלא אגידא באיניש אחרינא אף קודמי הויה שניה דלא אגידא באיניש אחרינא - Just as preceding her first betrothal she is not bound to another man due to any previous marriage so must it be preceding her second betrothal that she is not bound to another man due to her previous marriage. This refutes R' Eliezer who maintains that a divorce that leaves a woman partially bound to her first husband [when it stipulates that she may not marry some men and may marry others] is valid.

Asks Tosfos - This is NOT a refutation of R' Eliezer. When her second betrothal comes around she is still forbidden to the relatives of her first husband. So how can we say conclusively that she is no longer legally bound to her first husband the second time she marries and reject R' Eliezer. He maintains that a man can still be married to a woman vis a vis certain men [and she may not marry them] and not with respect to others [whom she may marry] and in fact everybody would agree that every divorced woman still has a connection to her first husband insofar as that she is forbidden to his relatives.

We may conclude from here that in fact after a man divorces [or dies], his former wife's prohibtion to his relatives is NOT because the couple is presently connected but rather an independent din that states that since in the past they were forbidden, we now continue the prohibition, despite her complete detachment from her former husband. If we learn that way then the proof against R' Eliezer is reinstated. A woman is indeed completely unattached to a man both before her first and second marriages [and thus a get that allows for some semblence of connection between the two would be invalid].

Rav Yosef Engel [Asvan Di-oraisa 19b - they were contemporaries but of course the Rogochover doesn't quote him] proves from this gemara that after a man divorces or dies, his legal connection to his wife is severed and her prohibtion to his relatives is not due to any present legal bond that exists between them but an independent din that prohibits her to his relatives because of their earlier bond.         

Here is where it gets thorny. All the Rogochover wrote was וגיטין פ"ג and I haven't the foggiest which side of the chakirah he is proving.... If anybody enlightens me I would be indebted:-). It could be that what he means is that if מיתה was העדר there would be no room to say that there is still some remnant of the marriage after his death and we could only posit such a theory if we learn that it is an active פעולה which breaks them off but not completely. If we take the position that מיתה is העדר then such a position is untenable. How can they be connected if the source of their detchment is that he doesn't exist? So according to the question of Tosfos divorce [and death] is an active פעולה of separation which allows for some continued legal bond but according to the conclusion of the Rogochover and R' Yosef Engel it may well be העדר because the bond between them is completely severed. [The ramification would be then that we now must consider what the mechanics of a get are. Is it also some type of העדר? Or no - maybe the active הפקעה and dissolution completely severs the bond? Maybe for a future post....]

לזכות נעכא גיטל בת רחל אסתר - זרעא חייא וקיימא די לא יפסוק ולא יבטול מפתגמי אורייתא